Nirbhaya case: Agonising wait must end as finality of death penalty is important.

Death penalty has been held to be a valid form of
punishment in India by the Supreme Court. But can convicts inordinately
delay their execution by using procedural loopholes in the law?

The question is being asked in view of delay in execution of the four
convicts in the 2012 Nirbhaya gang rape and murder case. The issue
involves significant questions of law regarding the rights of convicts,
victims and the larger society.

So far as the delay on the part of the State is concerned, the
Supreme Court has already ruled that a convict can’t be kept waiting for
the gallows and inordinate delay in his/her execution is a ground for
commuting the death penalty to life sentence.

In Jagdish versus State of Madhya Pradesh (2009), the Supreme Court
ruled that the government’s failure to decide a mercy plea within a
reasonable timeframe can be a ground for commuting the death penalty to
life imprisonment. “We must…say with the greatest emphasis that human
beings are not chattels (slaves) and should not be used as pawns in
furthering some larger political (goal) or government policy”, a Bench
headed by Justice HS Bedi said.

The State’s failure in taking expeditious decision amounted to violation of condemned prisoners’ right to live with dignity guaranteed under Article 21 of the Constitution, it had said.

“There can be no justification for the execution of a prisoner after
much delay…the cruelty of capital punishment lies not only in the
execution itself and the pain incident thereto, but also in the
de-humanising effects of the lengthy imprisonment prior to
execution…What makes it worse for the prisoner is the indifference and
ennui which ultimately develops in the family, brought about by a
combination of resignation, exhaustion, and despair,” the top court had
said.

Further, in Shatrughan Chauhan’s case (2014), a three-judge Bench
headed by Justice P Sathasivam said when there is “unreasonable,
unexplained and exorbitant” delay in disposing of mercy petitions,
courts are duty-bound to step in. The top court had said there should be
a gap of 14 days from the date of rejection of mercy petition and
execution of a death-row convict.

By its judicious verdicts, the Supreme Court has managed to check
arbitrariness on the part of the State. However, with the four convicts
in the Nirbhaya case delaying their execution by strategically availing
of their legal and constitutional remedies one by one, the Centre has
moved the Supreme Court, saying the court’s rulings in death penalty
cases are convict-centric and that it should lay down a set of
victim-centric guidelines.

The Centre has urged the top court “to clarify and direct that if the
convict of death sentence wants to file mercy petition, it would be
mandatory for a convict of death sentence to do so only within a period
of seven days from the date of receipt of death warrant issued by the
competent court.”

It’s not an easy task to get a guilty verdict in a capital crime.
Originally, for offences where the death penalty was an option, Section
367(5) of the Code of Criminal Procedure (CrPC) 1898 required courts to
record reasons where they decided not to impose death sentence. In 1955,
Parliament repealed Section 367(5), CrPC 1898, significantly altering
the position of the death sentence. The death penalty was no longer the
norm, and courts did not need special reasons for why they were not
imposing the death penalty in cases where it was a prescribed
punishment.

When the CrPC was re-enacted in 1973, Section 354(3) required courts
to record special reasons for awarding death sentence. Further, Section
366 of CrPC mandates that the convict shall not be executed unless the
death sentence is confirmed by the high court concerned.

In case the convict’s death sentence is confirmed by the high court,
he/she can challenge it before the Supreme Court in appeal. After
dismissal of his appeal, he has the option of filing a review petition
and then a curative petition. Thereafter, the convict can file mercy
petition before the president under Article 72 of the Constitution. Even
the dismissal of mercy petition by the President can be challenged
before the Supreme Court.

As pointed out by the Centre, it’s not that the convict doesn’t get enough opportunity to prove his/her innocence.

But the real question is about finality of death penalty. Noting that
finality of death penalty was extremely important; Chief Justice of
India SA Bobde had last month said a condemned prisoner should not be
under impression that it was an open-ended question.

It would be in the interest of both the convicts and the victims, if
the top court fixes a reasonable timeframe for death-row convicts to
exhaust their legal remedies; lest it becomes an endless agonising wait
for both sides, besides the society at large which is a legitimate
stakeholder in the entire process.

But binding the President in a timeframe to decide mercy petitions
would not be advisable as the Executive is supposed to take care of
situations and circumstances — including law and order — that may be
beyond the imagination of courts.

One would agree with the top court’s opinion in Shatrughan Chauhan’s
case that “exercising of power (of clemency) under Article 72/161 by the
President or the Governor is a constitutional obligation and not a mere
prerogative. Considering the high status of office, the Constitutional
framers did not stipulate any outer time limit for disposing of the
mercy petitions under the said Articles, which means it should be
decided within reasonable time.”